“The most savage controversies are those about matters as to which there is no good evidence either way.”

Cold Fusion and Defensibility

This green paper is the first part of a series to define defensibility and put together actionable steps to ensure your ediscovery method is sound, allowing you to focus on the merits of the case.

It includes strategies at multiple stages of the EDRM including: Identification, Preservation, Collection, Processing, Review.

Defensibility is a word thrown around consistently when it comes to electronic discovery, but due to the ambiguous language in the Federal Rules of Civil Procedure (FRCP), it is hard to define what constitutes a defensible process when it involves electronically stored information.

We’ll start by looking at what the FRCP says, and then break down each phase listed above, translating theory and concepts to tasks and documentation.

The “Reasonableness” of the Federal Rules

In taking a look at both Rule 26 and Rule 34, it is clear to see that “reasonableness” is the standard, which is a pretty ambiguous standard indeed.

26(a)(1)(E) – A Party must make its initial disclosers based on the information then REASONABLY available to it.

26(b)(2)(B) – A party need not provide discovery of electronically stored information from sources that the party identifies as not REASONABLY accessible because of undue burden or cost.

26(b)(2)(C)(i) – Discovery can be limited if …the discovery sought is UNREASONABLY cumulative or duplicative.

Rule 34(b)(2)(E) states that the responding party must be produced in … “a REASONABLY usable form”.

However, the definition of reasonableness includes sound thinking, logic and fairness. In practice, this means competent, dependable, and reliable. Science uses the term reliable in a measurable sense specific to experiments that are run using the scientific method. If a process is reliable, it means that it will generate the same results under the same conditions. It is repeatable. To see how important repeatability is, one only has to look at cold fusion.

Cold Fusion:

It was 1989. Between acid rain and ozone depletion, our country (and the world) was becoming keenly aware of how we were polluting the planet. On March 23, Marty Fleishmann and Stanley Pons (pictured above), the day before the Exxon Valdez spill, had a press conference stating they had cracked the code to Cold Fusion. Finally, there was a way to create massive amounts of energy through a nuclear reaction at room temperature rather than the extremely high temperature required causing thermal pollution. They had repeated the steps dozens of times bringing about the same results. (Taubes, Gary (1993), "Bad Science: The Short Life and Weird Times of Cold Fusion", New York: Random House, ISBN 0-394-58456-2) Scientists began working feverishly to reproduce the results. The results however, did not yield the massive amounts of heat that had been lauded. It turned out that in their studies, they hadn’t properly documented the procedure or the results. The fall was quick, and the dialogue went from “Cold Fusion” to “Cold Confusion” in just over a month. By that time, the New York Times declared it dead, with other major news outlets following suit.

If it’s not repeatable, it’s not defensible. People won’t be able to generate the same results unless it is a documented and sound process.

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The moral of the story is, if it’s not repeatable, it’s not defensible. People won’t be able to generate the same results unless it is a documented and sound process. The same can be said of the eDiscovery process. Documentation is the lifeblood of defensibility, and without it, you are short-changing your ability to both defend your client and go on the offensive to challenge opposing counsel’s tactics. If your house isn’t clean, then you can’t point out other people’s dirty kitchens.

Criteria:

For the record, defensible doesn’t mean perfect. With scope shift and limited information early on, it’s difficult to know exactly the right path to take. The true measure of a defensible eDiscovery process is the ability to withstand challenge after-the-fact by the opposing party. In order to have a defensible process, you must be able to show:

Why you chose that method

Why it was a reasonable method for this situation

How it was properly implemented

Validity and consistency

This is the premise behind the Electronic Discovery Reference Model (EDRM) and the funneling of data down to the most relevant and responsive set. The first stage of the EDRM where most law firms and attorneys get involved is the identification stage, which is where we’ll focus the rest of this paper on in light of these criteria.

E-STET's Electronic Discovery Reference Model

Process:

Identification is the foundation for the rest of the process, and is the stage where sources of potentially relevant information are discovered, identified, and documented. This happens through a couple of different processes namely data mapping and questionnaires.

Data mapping is crucial as it allows you to get a picture of all potential locations data can be stored. The most simple data map could be one desktop computer and a business cell phone for a sole proprietor. For a large corporation, it could be a complex network of both hundreds of internal servers with external network partners for email, cloud solutions, disaster recovery, and offsite storage. Identification is about understanding all possible locations regardless of whether you plan on collecting it. The most effective way to do this is to walk through a questionnaire with either the Director of IT or the CIO to fully understand where data exists and company policies regarding data practices.

While hopefully most employees at a company follow the correct data practices, many are either unaware of the policies, or have their own way of saving data. As such, not only should the IT Director or CIO be interviewed, but each individual custodian should also go through a list of questions pertaining to their data management strategies to see where they differ and identify new locations that would otherwise be undisclosed.

With this information you now know the full universe of potential locations: potentially relevant information, backed up information, and even completely useless information supported by a set of questionnaires. Armed with this knowledge, you can create a battle plan for your Meet and Confer about what you will produce and what you won’t, all the while confident in the defensibility of your identification process.

With the Identification phase complete, the next article will focus on ensuring the information is properly preserved.